Commander Mills, Inc.

MOUNT HOPE FINISHING COMPANY 513 preceding sentences, and shall thereafter, in accordance with such list, be offered employment in their former pr substantially equivalent positions as such employment becomes available and before other persons are hired for such work. It will also be recommended that the Respondents be required to make whole all employees on the payroll of the week beginning July 23, 1951, who were discriminatorily laid off on July 31, 1951, or discharged on September 19,1951, by payment to each of them of a sum of money equal to the amount that he or she normally would have earned as wages from the date of such dis- crimination to the date of offer of reinstatement, or in the cases of employees for whom there is insufficient work available, to the date of his or her placement on a preferential list as above set forth, as the case may be, less his or her net earnings during said period, the back pay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company (90 NLRB 289). It will also be recommended that the Respondents preserve and, upon reasonable request, make all pertinent records available to the Board and its agents. It has also been found that on and after July 28, 1951, the Respondents unlawfully refused to bargain collectively with the Union as the exclusive representative of the employees in an ap- propriate unit. The Trial Examiner will therefore recommend that the Respondents upon request, bargain collectively with the Union as such representative and, in the event that an understanding is reached , embody such understanding in a signed agreement. In view of the nature of the unfair labor practices committed, the commission by the Respond- ents of similar and of other unfair labor practices may be anticipated. The remedy should be coextensive with the threat it will therefore be recommended that the Respondents cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Textile Workers Union of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees of the Respondents at their North Dighton, Massachusetts, and Butner, North Carolina, plants, including powerhouse employees and working foremen, but excluding office and clerical employees, professional employees, guards, and all supervisors as defined by the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Textile Workers Union of America, CIO, was onjuly 28, 1951, and at all times since then has been, the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act 4. By refusing on July 28, 1951, and at all times thereafter to bargain collectively with Textile Workers Union of America, CIO, as the exclusive representative of their employees in the aforesaid appropriate unit the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating in regard to the hire and tenure of their employees, and thereby dis- couraging membership in the above-named labor organization, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By interfering with, restraining, and coercing their employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] COMMANDER MILLS, INC. and TEXTILE WORKERS UNION OF AMERICA, CIO. Case No. 16-CA-574. July 30, 1953 DECISION AND ORDER On May 13, 1953, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD finding that the Respondent had not engaged in certain unfair labor practices and recommending that the complaint be dis- missed in its entirety , as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter , the Textile Workers Union of America, CIO, the charging party, filed exceptions to the Intermediate Report. The Board ' has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed. The Board has considered the Intermediate Report , the exceptions, and the entire record in the case , and hereby adopts the findings, conclusions , and recommendations of the Trial Examiner. We note the following facts concerning the organizational activities of Earl Garth Smith and Bernice Smith, which the Union points up in its exceptions : The 1951 organizing drive, in which Earl Garth Smith "assumed active leadership in the way of securing applications for membership and supporting the Union " as referred to by the Trial Examiner, was under- taken under the direction of the Textile Workers Union repre- sentatives sent to Sand Springs ; during the drive in the spring of 1952 , when Earl Garth Smith wired the Textile Workers Union headquarters in Dallas , Texas, and received 1,000mem- bership cards , there were no union representatives present in Sand Springs . Moreover , in 1952 Smith and his wife were the only employees actively engaged in soliciting union member- ship. It was during this period, according to Smith ' s testimony, that he obtained 100 signed cards, and Edwards and Fisher "joked with him in the canteen one day concerning his union cards." We note too , as urged by the Union, that Smith and his wife completed applications indicating their desire to be considered for reemployment and mailed them to the Respondent, by registered mail. It is uncontroverted , however, that neither Smith nor his wife ever applied in person for reemploy- ment from the time of their layoff until the time of the hearing, and that it was the Respondent's policy to hire "at the gate." Despite the outstanding efforts of the Smiths in behalf of the Union in 1952 immediately preceding their layoffs, we find, as did the Trial Examiner, particularly in view of the lack of evidence of hostility by the Respondent against the Smiths or the Union and the failure of the Smiths to apply in person for reemployment , that the Respondent has not discriminated against Earl Garth Smith or Bernice Smith. [The Board dismissed the complaint.] 'pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [ Members Houston , Murdock, and Styles] COMMANDER MILLS, INC. Intermediate Report STATEMENT OF THE CASE 515 After a charge filed on October 28, 1952, and a first amended charge filed on October 30, 1952, by Textile Workers Union of America, CIO, herein called the Union, the General Counsel for the National Labo! Relations Board by the Regional Director for the Sixteenth Region on February 4, 1953, issued a complaint against Commander Mills, Inc., herein called the Respondent, alleging that the Respondent on or about July 13, 1952, discharged employees Earl Garth Smith and Bernice Smith and at all times thereafter unlawfully failed aod refused to reinstate them because of the activities of Earl Garth Smith in behalf of the Union and/or their membership in the Union, or because they engaged in concerted activities for the purpose of collective bargaining or other (sic) material aid or protection. The complaint further alleges that by reason of the conduct complained of, the Respondent discriminated and is discrimi- nating against these two employees, and is thereby engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, and that by such conduct Respondent interfered with, restrained, and coerced and is interfering with, restraining, and coercing its employees in their rights guaranteed under Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act The Respondent, on February 16, 1953, failed a motion to quash charges, on the grounds that a copy of the charge was not served upon it in the manner and within the time provided by law and the governing rules of the Board. On the same day, the Respondent filed a motion to quash notice of hearing and service thereof, on the ground that the notice of hearing was not issued, served, and return made thereon, in accordance with law These two motions were denied in an order by a Trial Examiner duly designated to rule thereon, were thereafter renewed orally at the opening of the hearing herein, and were again denied by the Trial Examiner duly designated to hear the case The objections of the Respondent to these rulings, renewed and continued through the hearing, are hereby overruled and the prior rulings affirmed By special appearance and answer, also filed on February 16, 1953, the Respondent asserts in substance that the Board is without jurisdiction and that the complaint is insufficient in law to confer jurisdiction upon it, and denies the violations of the Act alleged in the complaint On the issues so raised, and pursuant to notice, a hearing was commenced and held by Trial Examiner Howard Myers at Tulsa, Oklahoma, on March 23, 1953. On that date, certain questions related to motions and the production ofdocumentz^ were considered, and the hearing was then adjourned until April 2, 1953, without the taking of testimony The hearing was resumed on April 2, before the undersigned Trial Examiner, duty designated to take the place of the Trial Examiner previously designated to conduct the hearing, and concluded on April 6, 1953 At the hearing, the charging party appeared through its representative and the General Counsel and the Respondent were represented by counsel Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues, to argue orally upon the record, and to file briefs, proposed findings of fact, and proposed con- clusions of law, were afforded the parties Upon the entire record in the case and from his observation of the witnesses, and after full consideration, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, Commander Mills, Inc , is a corporation organized under and existing by virtue of the laws of the State of Oklahoma, having its principal office and place of business located in the city of Sand Springs, Oklahoma, where it engages in the production of cotton goods. Respondent, in the course of its business during the 12-month period immediately preceding the filing of the complaint herein, which period is typical and representative of all times material hereto, purchased for its plant raw material in excess of $ 1,000,000 in 322615 0 - 54 - 34 5 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD value, approximately 75 percent of which was shipped from outside the State of Oklahoma, and sold finished goods from this plant valued in excess of $ 1,000,000, approximately 75 percent of which was shipped to locations outside the State of Oklahoma. The Trial Examiner finds that the Respondent is engaged in commerce within the meaning of the Act IL THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, CIO, is a labor organization within the meaning of Section 2, (5) of the Act, admitting to membership employees of the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES Description of Weaving Department The Respondent, at its mill at Sand Springs, is engaged in operations in the mill proper and in a bleachery. The mill is comprised of 5 departments- -carding, spinning, spooling, warping and slashing, and weaving. Some 900 to 1,100 employees are usually engaged in the several departments of the mill The president is the active head of operations, and under him is a mill manager and a mill superintendent. The active head of the weaving department is an overseer who has a shift foreman under him for each of the several shifts of workers. The weaving department is made up of 3 weave rooms, designated by number. Weave room 1 is on the first floor of the plant; it is separated from weave room 2 by a partition. Weave room 3 is on the second floor of the plant, above weave room 2. The part of the building occupied by weave room 2 and weave room 3 was constructed as an addition to the plant in the year 1939. The first installation of equipment in these 2 rooms was accomplished in that year, and consisted of 2 types of looms--the Draper type and the Stafford type Model E Draper type looms and Stafford type looms were installed in room 3, which was the only one of the 3 weave rooms in which the Stafford type was installed. On June 14, 1952, there were 328 Stafford type and 80 model E Draper type looms in room 3, all installed in 1939. The Stafford type looms were purchased, used, through a Government agency for approxi- mately $ 60,000 About July 1951 the Respondent determined, because of the age and com- parative inefficiency of the Stafford type looms, to replace them and placed an order for modern XL model Draper type looms, at an approximate cost of a half million dollars, for delivery estimated for sometime during June 1952 Eventually, the 328 Stafford type looms in weave room 3 were replaced by 258 model XL Drapers. On about September 6, 1952, the model E Drapers remained in weave room 3, and some of the new model XL Drapers, re- ceived in August, had been installed, the estimated June delivery date not having been met. The model XL Drapers as ordered all finally were installed and were in operation by about the first of January 1953 The Staffords to be replaced by the new Drapers were scheduled to be junked In about May 1952, the warps on these looms were begun to be allowed to run out, until, in September 1952 (about the time the first new Drapers were installed), there were between 90 and 120 Staffords still operable in weave room 3. At that time, because of a need for a 90-inch cloth, the remaining Stafford looms were reactivated and the third-shift crew from weave room 2 was put on this work for a period of about 2 months When this work was completed, these remaining Stafford type looms were finally replaced i The weaving department, when in full operation, works 3 regular 8-hour daily shifts, each of 40 hours per week The first shift runs from 7 a.m to 3 p m , the second shift from 3 p m to 11 p m., and the third shift from 11 p m to 7 a.m An employee regularly assigned to one shift during a payroll period may at times "double over" and work more hours on another shift Among the jobs are those classified as loom fixers, weavers, battery fillers, and extras. During the times mentioned herein, on the third shift in weave room 3, 5 loom fixers 'As shown below, regular third-shift operations in weave room 3 had been discontinued on June 14, 1952. COMMANDER MILLS, INC. 517 and 10 weavers ordinarily worked the shift when the Stafford and model E Draper type looms were in use ; 32 looms to 1 weaver , and 64 looms to 1 loom fixer . After the installation of the 258 model XL Drapers to replace the 328 Stafford looms, there was 1 weaver to from 24 to 28 looms and 1 loom fixer to from 60 to 64 looms The Layoff of June 13-14, 1952 In weave room 3, all employees on the third shift ending on the morning of June 14, 1952, received separation notices which apprised them that they were laid off because the Respondent was discontinuing operation of Stafford type looms on that shift with a consequent reduction in personnel.2 With the exception of some work done in September 1952 , the third shift was not fully reactivated in weave room 3 until completion of the installation of the model XL Draper looms in the latter part of the year. Employment of Earl Garth Smith and Bernice Smith and Their Activities in Support of the Union Smith was first employed by the Respondent in September 1939, in setting up the change motions on the recently purchased Stafford type looms . Thereafter , he was employed as a loom fixer until about 1940 , when he returned to Texas to work at Postex Cotton Mills, where he had been employed before he was hired by the Respondent After about 9 months, he was reemployed by Respondent as a loom fixer until sometime in the year 1943 , when he returned to Texas. He again came to work for Respondent as a loom fixer on July 27, 1947, and was thereafter employed steadily until laid off at the end of work at 7 a .m. on Saturday , June 14, 1952. On the following Monday, June 16, or the Monday following that (the record is not clear) he went to work for the W. C. Norris Company, located in Tulsa, and has been steadily em- ployed there up to the present time. On the day he was laid off by the Respondent, he was being paid at the rate of $ 1.33 per hour . His rate of pay in new employment was somewhat higher, and presently is at the rate of $ 1.60 per hour. At different times after his employment by the Respondent , Smith worked in each of the 3 weave rooms, until the third shift was initiated in weave room 3. At that time he was a spare loom fixer and was engaged in fixing and overhauling At his request, he was assigned as a loom fixer to work on the third shift in weave room 3, and was so employed thereafter until he was laid off. When Smith began his employment with the Respondent in the year 1947 , he then occupied and now lives in one of a number of houses located on Mill Row , near the plant , which are controlled by the Respondent under lease , and made available for rental by employees of the Respondent. Bernice Trull Smith, his wife , began extended employment with Respondent on December 5, 1947 , as a spare weaver , and later and until June 14 , 1952, when he was laid off, was em- ployed as a weaver on the third shift in weave room 3. In May 1951 , Smith became interested in organizing the employees of the Respondent into the Union, and thereafter assumed active leadership in the way of securing applications for membership and supporting the Union. His home on Mill Row was used as local head- quarters for the Union and appears to have been the center of organizing activity . He com- municated with representatives of the Union, obtained blank union application or authoriza- tion cards , and succeeded in obtaining the signatures of many employees thereto. Mrs. Smith actively assisted him and the Union , and herself secured a number of employees ' signa- tures. 2 The following employees are shown to have been regularly employed and were on the pay- roll for the period ending June 14, 1952: Loom fixers--Earl Garth Smith, James Nolan Price, Melvin John Collins , Frank D. Wise, A. D Brown; weavers--Nadine Hutton Mooney, Bernice Trull Smith, Gertrude Rice, Hallie Wilhite, Maudie Davison, Claude E. Peek, Letnmie Earl McConnell, Clarence R. Davis , Jesse F. Hefner , Edward L. Ryals 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The union campaign in 1951 culminated in a consent election conducted by the National Labor Relations Board in September, in which a majority of the voters rejected the Union as their bargaining representative 3 The Respondent was aware of this union activity and the Smiths' part in it. Its president was personally informed by Smith; John Leisy, the overseer in the weaving department, and James P. Edwards, the foreman on the third shift in weave room 3, and undoubtedly others on the management side had heard it discussed by and among employees. Contentions in Support of Alleged Discriminatory Acts In presenting his case, the General Counsel effectively showed the activities of Smith and Mrs. Smith in behalf of the Union, and established the fact that the Respondent, by responsible members of management , were aware of the efforts exerted by them in support of the union organization. To establish allegations of discrimination as contained in the complaint, the General Counsel undertook to show that the Respondent took advantage of the conversion and installation of new equipment for old to get rid of two of the most active leaders in the union movement in the plant . In so doing , he presented evidence going to show that Smith was an experienced and qualified loom fixer, as capable, if not more so, than any other loom fixer for work on any model or typeof loom, that he was one of the oldest loom fixers in point of service with Respondent : that there never had been any complaint concerning the way lie performed his duties , and that on several occasions he filled in and performed the duties of a shift foreman. The General Counsel undertook to show that Mrs Smith was one of the oldest weavers In point of service , and one of the most efficient, and that her services always were satisfactory in every way . Considerable evidence was advanced in support of and in some respects in opposition to these contentions . The Trial Examiner finds that in substance the evidence in this case bearing on these particular facts regarding comparative experience, ability, and satisfactory service sustains the contentions of the General Counsel. The reso- lution of these facts alone , however , cannot determine the case Further in support of allegations of discrimination, the General Counsel undertook to show by use of payroll records, supported and enlarged upon by the testimony of witnesses, that of all the employees laid off on June 14, 1952 (with the exception of one or two who left the locality), were immediately or subsequently transferred to other shifts or weave rooms in the department, or were rehired; and that as the third shift in weave room 3 again regained full strength, loom fixers and weavers were employed in preference to Smith and Mrs Smith. 4 John Porter, employed as a loom fixer on the third shift in weave room 3 was trans- ferred, shortly before the layoff on June 14, 1952, to the third shift in weave room 2 and con- sequently was not on the weave room 3 payroll on the day of the general layoff. James Nolan Price, a loom fixer in weave room 3, third shift on June 14, 1952, was continued at his em- ployment on that shift as a loom fixer practically full time and for or during every payroll period thereafter. Porter and Price had been employed by the Respondent since 1939 or 1940 and had been loom fixers for several years before the layoff. It will be noted that beginning about November 1, 1952, loom fixers other than Price started to become employed on the SAlthough union organizing activities have been carried on in the past, there is no history of collective bargaining between the Respondent and a labor organization as representative of its employees in an appropriate bargaining unit, so far as the record in this case shows. The Union, the charging party herein, has twice been rejected by employees of the Respondent as such a representative. The Board has conducted two consent elections among employees eligible for membership in the Union to determine whether they desire the Union to represent them for the purposes of collective bargaining. The first, held in June 1949 (Case No 16-RC-395), resulted in 606 votes being cast against the Union out of a total of 936 valid votes cast and counted. The second, held in September 1951(CaseNo. 16-RC-847), resulted in 590 votes cast against the Union out of a total of 958 valid votes cast and counted. 4 The testimony with respect to individuals employed on and after the payroll period ending June 14, 1952, employed on the third shift in weave room 3, based on available payroll records, in summary is as follows: COMMANDER MILLS, INC 519 third shift in weave room 3, first, Lloyd Wheeler, then Boatman, and, for the pay period ending January 10, 1953, Melvin Brown again was employed on that shift Wheeler had been hired as a loom maker first on April 10, 1945, and Boatman had been hired on July 26, 1947 The record does not disclose an employment date for Brown, although lie was one of the loom fixers laid off on June 14, 1952 The Trial Examiner rejects the contention of the General Counsel as to the superior qualifications and experience of Smith over any one of these loom fixers and, for the reasons stated below, cannot infer a motive on the part of the Respondent to discriminate against Smith through the simple fact of the employment and re- employment of any of these five men at the time when it occurred. These men, as well as Smith, were shown to be capable and competent in the job. With respect to the length of service of individual weavers employed on the third shift in weave room 3, available employment records indicate the following first dates of employ- ment- Lemmie Earl McConnell, April 2, 1945, Charles Hall, February 4, 1946, Mamie TABLE I: Employed during payroll period ending June 14, 1952, on 3rd shift, weave room 3 First payroll period thereafter employed on 3rd shift, weave room 3 First payroll period inwhich transferred or employed on other shifts or locations Loom Fixers Earl Garth Smith James Nolan Price Melvin John Collins Frank D. Wise A D. Brown 6/28/52 6/28/52 6/28/52 6/28/52 Weavers: Nadine Hutton Mooney 11/ 1/52 Bernice Trull Smith Gertrude Rice 11/ 1/52 Hattie Wilhite 6/28/52 Maudie Davison 11/ 1/52 Claude E Peek 6 /28 /52 Lemnue Earl McConnell 6/28/52 Clarence R. Davis 9/20/52 Jessie S Hefner 11/15/52 Edward L. Ryals Extra weavers: Kathleen Henchy 11/29/52 6/28/52 7/12/52 6/28/52 6 /28 /52 7 /12/52 TABLE II: Not employed during payroll period Payroll date during ending June 14, 1952, on 3rd shift, which employed weave room 3, but later employed there Loom Fixers: John Porter.......... .......................................... ..... ... 11 / 1/52 Lloyd Wheeler .......... . .............................. ................ ..........11 / 1/52 Clarence Boatman .......................... ............................ ........ 12/13/52 Melvin Brown ........ ..... .................... ................................. 1/10/53 William Condray .................................. 1/21/53 Walter W. Smith .......................................................... ....... 3/ 7/53 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Davison, May 17, 1946, Nadine Mooney, July 22, 1947, Bernice Trull Smith, December 5, 1947, Frank Spears, July 28, 1948, Gertrude Rice, August 24, 1949, Dorothy Matts, October 14, 1949; Claude Peek, June 30, 1951, Clarence Davis, August 6, 1951; Edward Ryles, August 6, 1951; Kathleen Henchy, March 8, 1952, Robert McNeill, June 9, 1952; Edna Manus, October 4, 1952; Leota Lawson, October 4, 1952. Again, although it may be conceded for the purposes of this case that Mrs. Smith was an efficient and capable worker, no motive of discrimination can be inferred from the fact that other weavers were reemployed after the layoff. Alleged Instances of Hostility Toward Smith Smith related an incident and a conversation which occurred between him and H. B. Dowell, president of the Company , just prior to the time Smith began his active canvassing on behalf of the Union According to him, he met Dowell as he was going off work at about 7 a.m. and asked Dowell if he could speak to him for a moment The two men walked toward Dowell's office and at that time, according to Smith he told Dowell that he understood that he, Smith, was giving him a dirty deal , that he had never " run over anybody" in his life and he wanted it clearly understood that he was not trying to take advantage of Dowell or anyone else, and that he said Dowell "if it is possible and it is in my power I ' m going to organize a union here, the CIO-TWUA, if it is possible" and that Dowell then said " I used to like you ." Smith said that he replied , " I am sorry, Mr Dowell, that you don' t like me now because if that is the way you feel about , it will have to be all right , because I'm going to still organize a union if it is possible If you want to know why , I will tell you You will have to ask me, but I will tell you why if you want to know " Immediately following this conversation Smith said he called Truman Henderson , a Textile Workers Union of America representative , at the Bliss Hotel, Tulsa , told Henderson he was " ready to start," and thereafter engaged actively in attempting to organize the employees of the Respondent into the Union. Dowell's version of the conversation was this A. As I recall, he said, "I would like to speak to you" or "may I speak to you for a moment" or something like that. We stepped into the office. As I recall, we went upstairs toward my office The conversation was this. He said, "Mr. Dowell, I want you to know that I would not do anything against you personally at all. You have been very good to me and I appreciate it " My answer was, "Why, what do you mean, we have always been good friends" So he said, "Well, this organization that is going on and my part in it, I want you to know that if you think that I have anything against you personally or would injure you in any way, if you say so, I will leave town." I replied, "That is a matter for you to decide." He said, "Well, you know there are some things that a person believes in down in their heart, and I want you to know, while I believe in it, I don't want to injure you personally at all." My reply to him was that a person should live in accordance with the dictates of his conscience, I have always in my experience found it to be the best pro- 4 Weavers: Melvin Gee .................................................................................... 8/29/52 J. D. Anderson ........................................... .............................. 8/29/52 Frank Spears ...... ................................. ...... .. ......... ......... 9/20/52 Robert T. McNeill .................................................. ....... ....... ....10/ 4/52 Charles T. Hall ................................................................................ 10/18/52 Sylvia Cambrink ..................................................................................11 /15/52 Nellie Grigsby (9) ............. .11/15/52 ............................ ...................... .... ....... Lonnie Walls .......................................................... ......12/13/52 Van Rue Farrell .............. ................ ...................... ...... ........12/13/52 Nannie H Box ........................... ........................................................12/27 /52 Milban Walls ...................................................................................12/27 /52 Dorothy Matts .............................................................................12/27/52 Carlos Heason ....................... ... ........... .................... .........12/13/:5 Lucille Harvey ..... ............... .............. ..... ................... 1 /21 /52 Dale Box .................................. ................... ....... ........ ........... 2/ 7/53 Coy Mashburn ................................................................. ........... 2/21/53 Charles Mason ........................ ....... .............................................. 2/21/53 COMMANDER MILLS, INC. 521 cedure to live with a good conscience and he should live accordingly and everyone else should He did ask me if I would favor him and advance him $50. I said, "Yes, sure." He had with him some advance slips that he owed us in the operation and I advanced him $ 50 which I remember he received and which he paid back. Q. Well, now, those advance slips, what are they, Mr. Dowell? A. We advance funds to our employees and have a slip which goes to our cashier, Mr. Williams, and he advances them against the payroll, against his pay Again apparently for the purpose of showing that the Respondent was opposed to him because of his union activities and consequently later discriminated against him, Smith testified that Edwards, his shift foreman and one Fisher, a son of the mill superintendent, had joked with him one day in the canteen concerning his union card. This appears to have been during the time when Smith and his wife and others were most actively engaged in soliciting union membership. Smith did not work his shift on the day of the layoff, but according to him, he appeared in weave room 3 at the end of the shift and told Edwards, the shift foreman, that he, Edwards, knew why he was being laid off; and that Edwards made no reply. From this, it is assumed that Smith expects that Edwards' silence is to be taken as acquiescence to Smith's implied statement that he was being laid off because he was active in the Union. The conversation with Dowell, the banter with Edwards and Fisher, and Edwards' silence in the face of Smith's remark on the morning he was laid off, neither singly nor taken collec- tively, demonstrate hostility or animosity on the part of any of these persons toward Smith. Practice of Respondent in Hiring or Reemploying The personnel office maintained by the Respondent does not screen employees for hiring or reemployment, nor does it terminate employment of employees. Its function seems to be more of a fiscal and administrative nature In the weaving department Leisy, as overseer , is the executive head. The shift foremen, who report to him, are in complete charge, subject to the instructions of Leisy, of the several shifts which they supervise; and in ordinary practice the shift foreman is the one who ordinarily hires or fires an employee. Although Leisy has the superior authority, it is his practice to accept the actions or recommendations of his shift foreman with respect to the hiring or firing of any individual When a shift foreman is in need of help, he may advise Leisy or the personnel department (which has a record of former employees), or he may find a person he considers suitable for the vacancy and hire that individual upon his own authority. The Respondent from time to time may accept written applications for employment which are transmitted to a department head who might have use for the particular skill or talent of the applicant. In ordinary cases, however, and customarily, persons seeking employment apply for a' pass through the gate into the mill and then go directly to the department head or a shift foreman to apply for work. According to uncontradicted testimony in this case, it is local industry practice for individ- uals wishing work to apply directly for employment to the department head or shift foreman in the plant wherein work is sought In the case of Smith, at the times he was hired and rehired, it was upon oral application to the head of the department, the overseer, and in one instance his brother made inquiry as to employment for him and the overseer sent a telegram to Smith in Texas informing him that a job was open for him. Mrs. Smith was hired by Leisy, the overseer It is clear that no actual hiring is done by the personnel department, and that in actual practice persons desiring to work apply "at the gate." Under date of September 5, 1952, the Respondent, by T. W. Pafford, its secretary, mailed an identical form of letter to Srn 'h, Mrs. Smith, and the few other employees who had not been reemployed by the Respondent o. who had not remained in its employ after the layoff of June 14, 1952. This letter, sent shortly after the new model XL Draper looms were re- ceived and were being installed in the plant, read as follows: Your name in on our records as a former employee. We never know when we may have a job opening, so we like to keep applications on file for ready reference. You should file an application with us before September 15, if you wish to be consid- ered for reemployment. We don't expect to be doing any great amount of hiring right away, but if you do not have an application on file before September 15, you will not be called after that date should there be a job opening for which we think you are suited. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We must hire on short notice and failure to file application will indicate that you are presently employed or for some other reason you are not available for work Upon receipt of the letter, Smith and his wife completed the enclosed forms of application and mailed them to the Respondent, registered mail Each indicated in these applications that he and she desired work at the Respondent's mill. On or about September 9, 1952, Smith, on his way to work at W. C. Norris saw Leisy in the latter's yard, approached him and showed him the letter of September 5 from the Respondent. According to Leisy, it was too dark at that time of the morning for him to read the letter but that Smith said he had a paper he was going to hit them in the face with--" there is the appli- cation I am going to mail back." Smith denies that he made the remark attributed to him by Leisy. He said he simply wanted to tell Leisy that the Company had offered him employment. As noted above, the charge herein was filed on October 28, 1952. It is uncontradicted upon the record that up until then neither Smith nor Mrs. Smith had ever personally, directly or indirectly applied for reemployment with the Respondent after the layoff. During the course of the hearing in this case , after the Respondent had adduced testimony going to show that shift foremen had the right to hire to make replacements when needed, Mr. and Mrs Smith called one evening at the home of Edwards, the shift foreman on the third shift in weave room 3, and indicated their desire for reemployment Edwards did not reply. Again on the last day of the hearing at about 5 o'clock in the afternoon, Smith left the hearing room and went down to the plant, met Mrs. Smith, and at the gate asked for admission to the mill. The watchman telephoned and in response to his call, a weave room shift fore- man came out, and talked to Smith and Mrs. Smith, who asked for work. They were told that all jobs on that shift had been filled. A few minutes later, while Smith and Mrs. Smith were standing talking to the watchman at the gate, the secretary of the Company, together with Leisy and Edwards, who had testified at the hearing that afternoons returned from the court- house where the hearing had been in progress. With the permission of Pafford, the secretary, they entered the mill and applied for work to another shift foreman, who told them that no employment was then available Evidence of these two purported applications for employment or reemployment, made by the Smiths during the course of the hearing, does, not impress this Trial Examiner as con- stituting proof of a refusal on the part of the Respondent to reemploy them in their former positions because of the activity or membership in the Union On July 16, 1952, the Monday following the layoff, Mrs Smith applied to the Oklahoma Employment Security Commission for unemployment compensation benefits, which in a de- termination by the Commission on November 18, 1952, were denied. Mrs. Smith took an appeal from the first determination holding that she was ineligible to receive benefits due to restriction of hours. In the notice of appeal on her behalf it was stated. "I am available for work. I still do not have child care for the second shift I haven't been down to the mill but I called my boss on the third shift as he could put me on'the third shift I haven't contacted any of the other shifts. It is pretty hard to get on any shift." This appeal was filed under date of December 1, 1952, and subsequently was denied 6 Concluding Findings The facts as shown herein clearly establish that Smith and Mrs Smith, at the time of their respective layoffs, were capable and experienced employees; that each was active in the Union and lending their aid and efforts in support of the Union; that management was fully aware of their union activities and support, and that after being laid off, neither was invited by the Respondent to return to work It is just as clearly established that the layoff was the result of management planning, looking forward to the installation of new equipment in weave room number 3. The question to be resolved here is whether the Respondent took advantage of the occasion to deliberately s There was an evening session on the last day of hearing. 6 The notice of hearing and notice of appeal were received in evidence over the objection of the General Counsel, his objection being grounded on the fact that the document itself had not been formally authenticated by the Oklahoma EmploymentSecurity Commission. The document was received after its contents had been proved by Mrs. Smith under cross-examination, and therefore was admissible. COMMANDER MILLS, INC. 5 23 attempt to rid itself of the services of two of the most active adherents to the Union among its employees. Smith was the only one of the laid-off loom fixers not immediately retained, transferred, or later recalled, Mrs. Smith was among the more experienced weavers, but was not re- tained, transferred, or later recalled Each of the several witnesses who testified at the he. ring, with the exception of Smith, impressed the Trial Examiner with the clarity and straightforwardness of their answers, both under direct and cross-examination Indeed, a close examination of the record discloses only the variance of memory on important points natural in the recollection of events or practices which occurs after a time, or according to the ability of expression on the ,kart of the witness The Trial Examiner has had no difficulty in deciding to accept the version of Dowell, over that of Smith, concerning the conversation between them in which Smith referred to his in- tention to support the Union. Smith solicited the occasion for the purpose of securing an advance against future earnings, and he took the opportunity to discuss his intention to lend support to the Union, Dowell answered him in natural fashion and in no way, directly or indirectly, threatened or attempted to coerce Smith. Smith's reported conversations with Leisy and Edwards, and the bantering of Edwards and Fisher, are so vaguely described by Smith as to be accorded little weight. The Trial Examiner can nowhere find hostility or even animus displayed by representatives of the Respondent toward Smith, Mrs. Smith, or the Union Smith could have made positive effort toward securing reemployment by applying directly to Leisy, who had twice before hired him, or to a shift foreman. This he did not do, although he continued to live in the vicinity, in a so-called company house, and may be presumed to have been informed, at least in general, concerning the employment situation at Respondent's mill. The Respondent knew he was continuously elsewhere employed, and according to com- petent testimony, it is not customary for the Respondent to request a former employee to accept employment with it when that person is elsewhere employed Mrs. Smith also could have applied for work at the mill The Trial Examiner attaches little importance to the fact that she applied for unemployment benefits, or to the determina- tion that she was ineligible therefor because she was prevented from working the second shift. It is true that the Respondent might have requested her services, but the mere fact that it did not, where no formal seniority or other employment rights existed does not show dis- crimination against her In considering whether the selection of employees for layoff was discriminatory, the whole course of conduct on the part of the Employer should be examined. The Board has frequently held that if in a particular case the evidence should establish that work for a laid-off com- plainant become available and the Respondent furnished no adequate explanation for its failure to recall such employee in accordance with its general practice, it reasonably may be inferred that the failure to recall was for reasons other than the fact that the complainant made no application for reemployment. See Salant& Salant, Incorporated, 92 NLRB 417. Here, the general practice did not exist. In John S. Barnes Corporation, 92 NLRB 589, it was held: . it is not inherently impossible that an employer who entertains union animus and who is guilty of the illegal conduct here related, may still find himself in a position where . . it is necessary to discharge union members for economic reasons, or indeed for any reason other than for a purpose prescribed by the Act. In the instant case, there is no showing that it was the general practice for the Respondent to recall laid-off employees, nor is there any credible testimony proving that the Respondent entertained union animus. The preponderance of evidence proves otherwise. The Trial Examiner finds that the employment of Earl Garth Smith and Bernice Smith was terminated by the Respondent in connection with a general layoff of employees in the depart- ment in which they were employed, and for no other reason, and further finds no substantial evidence to support the allegations of the complaint. Upon the basis of the foregoing findings of fact and upon the entire record in the case, and after full consideration, the Trial Examiner makes the following 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The operations of the Respondent, Commander Mills, Inc., constitute trade, traffic, and commerce among the several States, within the meaning of Section 2 (6) of the Act. 2. Textile Workers Union of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. The Respondent has not engaged in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. By discharging and refusing to reinstate Earl Garth Smith and Bernice Smith, the Respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. [Recommendations omitted from publication.] SUTHERLAND PAPER COMPANY and INTERNATIONAL PRINTING PRESSMEN AND ASSISTANTS' UNION OF NORTH AMERICA, A. F. L., Petitioner. Case No . 7-RC-2200. July 30, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Russell W. Bradley, hearing officer. The hearing officer referred to the Board a motion of the Intervenor, Independent Union of Suther- land Paper Company Employees, Inc., herein called the Inde- pendent, to dismiss the petition. For reasons hereinafter stated, the motion is denied. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Peter- son]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the National Labor Relations Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the mean- ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks a unit composed of employees in divisions 2, 5, and 9 of the Employer's Kalamazoo, Michigan, plants, who are employed in the following job classifications, together with their apprentices, assistants , and helpers: Journeymen printing and cutting pressmen in the printing and cutting departments, journeymen stonemen , journeymen plate- men, journeymen diemakers, journeymen rubber platemakers and journeymen color matchers. The Employer and the Inde- pendent contend that the employees sought by the Petitioner may not appropriately be severed from the existing production 106 NLRB No. 85.